area. At the same time, C.O. Martuscello struck a hard blow with his baton to the back of plaintiff's legs causing plaintiff to fall to the floor. The guards then piled on the plaintiff and he was handcuffed by McKernon and returned to his cell.
Medical records substantiated an injury to Officer Huff's nose and eye and there was no explanation offered by plaintiff of how that occurred. Thus, the uncontroverted evidence supports defendants' position that Huff was struck in the eye and nose by plaintiff's right fist.
The testimony of the defendants also revealed that within an hour of the incident the facility nurse came to the floor and plaintiff was taken from his cell to an examination area. The nurse found a laceration on the top of plaintiff's scalp and determined that plaintiff's hair had to be shaved in the area of the laceration so that sutures could be placed to close the wound. The suturing occurred in the facility infirmary shortly after noon on the same day.
In connection with plaintiff's scalp laceration, the defendants testified uniformly that he was never struck on the top of the head with the baton but that when Officer Huff jabbed and countered with his baton, plaintiff spun around, hit a cell door on the opposite side of the tier, and thus suffered the laceration that was sutured by the institution medical personnel.
Sergeant McKernon also testified that while escorting plaintiff from the facility hospital back to plaintiff's cell, he asked plaintiff why he had struck Officer Huff. McKernon contends that plaintiff stated that he struck officer Huff in retaliation for an incident in which C.O. Perez allegedly assaulted inmate Weston Harrell. plaintiff purportedly claimed that although he wanted to attack Perez, he could no longer wait for such an opportunity so instead he struck Huff.
Due to various internal inconsistencies in plaintiff's testimony with regard to the events of May 31, 1982, the court finds that the probability of the truth of defendants' version of the events is greater than that put forth by plaintiff. Therefore, the court finds by a preponderance of the evidence that the events of May 31, 1982 occurred substantially as testified to by the defendants.
B. Superintendent's Hearing
Plaintiff's complaint also stated a claim for alleged deprivations of due process occurring in the Superintendent's Hearing which was held as the result of internal prison disciplinary charges brought against the plaintiff for his alleged participation in the May 31, 1982 altercation. In this regard, a hearing was held on June 4 & 7, 1982 in which evidence was presented accusing the plaintiff of certain disciplinary infractions. Plaintiff testified that during this hearing Officer Van Dusen, the officer overseeing the hearing, refused to allow him to question certain witnesses,
that he refused to permit him to be present when the hearing officer questioned those inmates, and that he never informed plaintiff whether any of the inmates were ever called or questioned. Plaintiff acknowledged that it was standard practice in such hearings for the hearing officer himself to question witnesses based upon pre-prepared questions provided by the inmate calling the witness.
Captain Van Dusen testified that in relation to the hearing he interviewed each inmate requested by plaintiff and that he also reviewed written statements provided by each witness. He claimed, however, that he refused to allow the plaintiff to be present during such questioning because of security concerns. In this respect, Van Dusen testified that each witness called by the plaintiff, and the plaintiff himself, were SHU detainees who had either participated in or encouraged unprovoked violence upon the prison staff in the SHU ward in the previous weeks. Van Dusen claimed that he sought to avoid further problems potentially arising when the inmates were brought together.
Following the hearing Capt. Van Dusen imposed three-hundred and sixty (360) days SHU confinement with loss of prison privileges upon plaintiff for his participation in the May 31, 1982 altercation. This finding was later reversed and ordered expunged by a state court in a CPLR Article 78 proceeding held in Wyoming County. No party was able to provide the court with the basis for the state court's disposition of the Article 78 proceeding.
II. CONCLUSIONS OF LAW
A. Eighth Amendment Excessive Force
Following the completion of the plaintiff's proof, the court dismissed the excessive force claims as to defendants Finn and Baldwin pursuant to Fed.R.Civ.P. 50 on the grounds that their existed no credible evidence supporting their involvement in the alleged incident. The following constitutes the court's conclusion of law as to the excessive force claim brought against the remaining defendants.
The Eighth Amendment protects prisoners from "cruel and unusual punishment." See Wilson v. Seiter, U.S. , , 111 S. Ct. 2321, 2323, 115 L. Ed. 2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S. Ct. 285, 290-91, 50 L. Ed. 2d 251 (1976). However, it is "the unnecessary and wanton infliction of pain", Estelle v. Gamble, 429 U.S. at 103, 97 S. Ct. at 290, and not simply the "ordinary lack of due care for the prisoner's interests or safety" Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986), which the Eighth Amendment prohibits.
To prevail in this civil rights action grounded in the Eighth Amendment, the plaintiff must show that the defendants used such excessive force to subdue him that the force could fairly be characterized as the "unnecessary and wanton infliction of pain." See Hendricks v. Coughlin, 942 F.2d 109, 113 (2nd Cir. 1991). What is necessary to establish an "unnecessary and wanton infliction of pain" varies according to the nature of the constitutional violation. Whitley v. Albers, 475 U.S. at 320. "Wantonness does not have a fixed meaning but must be determined with 'due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.'" Wilson v. Seiter, 111 S. Ct. at 2326 (1991) (quoting Whitley v. Albers, 475 U.S. at 320). In this manner, the court must consider the "wantonness" element within the context of the situation in which the underlying force occurred. Id. What may amount to the "unreasonable and wanton infliction of pain" is determined by the constraints facing the state official. As the Whitley court stated:
Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."
Id. at 321-322, 106 S. Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).
The Supreme Court has recently re-affirmed use of the Whitley test in situations such as the one now before the court. See Hudson v. McMillian, U.S. , 117 L. Ed. 2d 156, 112 S. Ct. 995, 999 (1992). In Hudson, the Court stated that "whenever prison officials stand accused of using excessive force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id.
Applying the Whitley/Hudson test, the Second Circuit recently stated:
To determine whether the defendants acted maliciously, a jury should consider the following factors: the extent of the plaintiff's injuries; the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response. Id. (citing Whitley, 475 U.S. at 321, 106 S. Ct. at 1085). If an evaluation of these factors leads the jury to conclude that the defendants acted maliciously, wantonness has been established. And an Eighth Amendment violation has occurred. If, on the other hand, reflection upon these factors leads the jury to find that the defendants acted in a good-faith effort to maintain and restore discipline, no constitutional violation has occurred because the subjective component of the claim has not been satisfied.